The characterization of persons killed at My Lai as Viet Cong or Viet Cong sympathizers suggests another basis for regarding the killings as “grave breaches” under the Geneva Conventions. The 1949 Geneva Convention Relative to the Treatment of Prisoners of War accords prisoner of war status to persons in a number of categories, and article 5 of the Convention lays down a rule regarding persons whose eligibility for prisoner of war status is uncertain:

     Should any doubt arise as to whether persons,having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated [for prisoners of war],such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

 The victims at My Lai had fallen into the hands of the American forces, and their status was indeterminate (as conceded by the United States in establishing the area as a “free fire zone”). Such persons,while awaiting determination of their status,were “protected persons” under article 5,and the wilful killings of these persons were “grave breaches” under this Convention:

     Grave breaches…shall be hose involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing,torture or inhuman treatment,……[or] wilfully causing great suffering or serious injury to body or health…..

Finally, the United States has an obligation to investigate and prosecute “grave breaches”:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality,before its own courts.